If a party to Industrial Court proceedings takes steps to undermine the process or create further industrial unrest while a case is pending, can the Industrial Court step in to stop such conduct?
The Industrial Court in Malayan Banking Berhad v National Union of Bank Employees (Award No: 1147/2025) addressed this issue, where the Court affirmed that it does have the authority to issue cease and desist orders to preserve the integrity of its proceedings.
Brief Facts
- The case stemmed from an allegation of sexual harassment made by KWL, an employee of the Bank, against another employee, R.
- The Bank referred a trade dispute to the Director General of Industrial Relations, arising from the Union’s and KWL’s alleged failure to comply with the Memorandum of Understanding on Code of Conduct for the Prevention of Sexual Harassment in the Workplace, and the 19th Collective Agreement in relation to KWL’s complaint (“Trade Dispute”).
- After the dispute was referred to the Industrial Court, the Union continued its industrial actions, including publishing disparaging and defamatory postings about the Bank and its officers, and organising pickets related to the same matter.
- The Bank issued a cease and desist notice to the Union, requesting it to stop these activities. The Union refused, claiming that its actions were part of legitimate trade union activities protected under the ILO Convention and domestic law.
- Consequently, the Bank applied to the Industrial Court for a cease-and-desist order, seeking to restrain the Union from (1) making public statements or posts relating to KWL’s sexual harassment allegations and (2) carrying out pickets or public protests against the Bank while the trade dispute remained pending (“Application”).
- The Union opposed the Application, contending that the request infringed its right to engage in trade union activities, including the right to disseminate information.
Court’s Findings
The Industrial Court held that it was empowered to issue a cease and desist order in appropriate circumstances:
- The reliefs sought by the Bank were procedural and interlocutory in nature, intended to preserve the integrity of the Court’s process while the main reference remained pending.
- Under sections 28 and 29(g) of the IRA 1967, the Court has the incidental power to regulate its own proceedings and to ensure that the proceedings are not undermined by prejudicial public statements, misinformation or acts that may affect the administration of justice.
- For ease of reference, sections 28 and 29(g) are reproduced as follows:-
“28. Save as otherwise expressly herein provided and subject to any regulations that may be made in that behalf, the President may regulate the procedure and proceedings of the Court as he thinks fit and, with the approval of the Minister, make rules governing such procedure and proceedings.
“29… (g) generally direct and do all such things as are necessary or expedient for the expeditious determination of the matter before it.”
- The Court clarified that the order sought was not an injunction, which it has no jurisdiction to grant. Instead, the cease-and-desist order was a procedural direction regulating the parties’ conduct during the pendency of proceedings, which is a power that properly falls within its authority under the IRA 1967.
On the facts, the Bank presented evidence that the Union had made several online postings and organised pickets accusing the Bank and its officers of condoning sexual harassment. The Union did not dispute these acts but claimed they were part of its right to inform members.
The Court held that while trade unions may picket and communicate with members, these rights are not absolute. Defamatory or misleading conduct, especially during pending proceedings, falls outside legitimate trade union activity and may prejudice justice. As section 40(2A) of the IRA 1967 prohibits picketing once a dispute is referred to the Court, the Union’s actions were unlawful. Accordingly, the Industrial Court granted the cease and desist order to restrain further public statements, postings, or picketing until the dispute’s final disposal.
Key Takeaways
This decision underscores that the Industrial Court is not without recourse when faced with conduct that may disrupt or prejudice ongoing proceedings. Pursuant to sections 28 and 29(g) of the Industrial Relations Act 1967, the Court has the power to issue cease and desist orders or other directions necessary to preserve procedural integrity and ensure a fair hearing process.
For employers, this serves as a timely reminder that they are not defenceless against disparaging or disorderly conduct by unions or employees. While parties are free to communicate within lawful bounds, any conduct that crosses into defamation, misinformation, or unlawful picketing that undermines the integrity of the proceedings can be curtailed through the Court’s procedural powers, even before the substantive dispute is determined.
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This article was written by Leow Ho Eng (Associate) with assistance of Shoo Joedee from Donovan & Ho’s employment law practice.
Donovan & Ho is a law firm in Malaysia, and our employment practice group has built a reputation for providing strategic employment advice to local and global organisations. Our team of employment lawyers provide advice on employment law and industrial relations including review of employment contracts, policies and handbooks, advising on workforce reductions, and managing dismissals of employees for poor performance or misconduct. We also represent clients in unfair dismissal claims and employment-related litigation.
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